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Pittwater Council v Scahill

Pittwater Council v Scahill

Case [2009] NSWLEC 12 27 March 2009

Unlawful Development

Environmental Protection

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Reported Decision: (2009) 165 LGERA 289

Land and Environment Court

of New South Wales

CITATION: Pittwater Council v Scahill [2009] NSWLEC 12

PARTIES:
PROSECUTOR
Pittwater Council
DEFENDANT
Stephen Scahill

FILE NUMBER(S): 50053 of 2008

CORAM: Preston CJ

KEY ISSUES:
PROSECUTION :- cutting down of trees without development consent - sentence - trees part of endangered ecological community - offender an arborist - offence committed in reckless disregard for whether lawful or not - offence committed to earn a fee - subjective circumstances of offender - offender's limited capacity to pay.
Trees: - cutting down of trees without development consent - offence - sentence - trees part of endangered ecological community - offender an arborist - offence committed in reckless disregard for whether lawful or not - offence committed to earn a fee - subjective circumstances of offender - offender's limited capacity to pay.

LEGISLATION CITED: Crimes (Sentencing Procedure) Act 1999 s 3A, 10, 17, 21A, 22, 23
Environmental Planning and Assessment Act 1979 s 125, 126
Fines Act 1996 s 6
Threatened Species Conservation Act 1995 (NSW)

CASES CITED: Axer Pty Ltd v Environment Protection Authority (1993) 113 LGERA 357
Bentley v BGP Properties Pty Ltd [2006] NSWLEC 34; (2006) 145 LGERA 234
Byers v Leichhardt Municipal Council [2006] NSWLEC 82
Byron Shire Council v Fletcher [2005] NSWLEC 706; (2005) 143 LGERA 155
Camden Council v Tax [2004] NSWLEC 448; (2004) 137 LGERA 368
Cameron v Eurobodalla Shire Council [2006] NSWLEC 47; (2006) 146 LGERA 349
Camilleri's Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683, 82 LGERA 21
Carlino v Leichhardt Municipal Council [2005] NSWLEC 198; (2005) 144 LGERA 235
Director-General of the Department of Environment and Climate Change v Hudson [2009] NSWLEC 4
Environment Protection Authority v Capdate Pty Ltd (1993) 78 LGERA 349
Environment Protection Authority v Coe Drilling Australia Pty Ltd [2005] NSWLEC 719
Eurobodalla Shire Council v Wheelhouse [2006] NSWLEC 98
Garrett v Freeman (No 5); Garrett v Port Macquarie Hastings Council; Carter v Port Macquarie Hastings Council [2009] NSWLEC 1
Garrett v Williams [2006] NSWLEC 785; (2006) 160 LGERA 115
Gittany Constructions Pty Ltd v Sutherland Shire Council [2006] NSWLEC 242; (2006) 145 LGERA 189
Hardt v Environment Protection Authority [2007] NSWCCA 338; (2007) 156 LGERA 337
Hoare v The Queen (1989) 167 CLR 348
Kari & Ghossayn Pty Ltd v Sutherland Shire Council [2006] NSWLEC 532; (2006) 150 LGERA 231
Majury v Sunbeam Corp Ltd [1974] 1 NSWLR 659
Manly Council v Taheri [2008] NSWLEC 314
Mosman Municipal Council v Menai Excavations Pty Ltd [2002] NSWLEC 132; (2002) 122 LGERA 89
Power v Penthill House Pty Ltd (1993) 80 LGERA 247
R v Allpass (1993) 72 A Crim R 561
R v Dodd (1991) 57 A Crim R 349
R v Murray (unreported, NSW Court of Criminal Appeal, Barr J and Newman J, 29 October 1997)
R v Nichols (1991) 57 A Crim R 391
R v Peel [1971]

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Pittwater Council v Scahill

Details

AGLC: Pittwater Council v Scahill [2009] NSWLEC 12
Case: [2009] NSWLEC 12
Decision Date: 27 March 2009

CaseChat Overview and Summary

The Land and Environment Court of New South Wales presided over a case involving Stephen Scahill, who cut down two trees without the necessary development consent. The trees were part of the endangered Pittwater Spotted Gum Forest, and Scahill's actions threatened the ecological community. Scahill, an arborist, claimed financial hardship and pressure from the property developer, Grove Group Pty Limited, as reasons for his actions. The court needed to determine the appropriate penalty for Scahill's actions.

The court considered the objective and subjective circumstances of the offence in determining the penalty. The objective circumstances included the actual environmental harm caused by cutting down the trees, Scahill's state of mind, his reasons for committing the offence, and the foreseeability of risk of harm. The subjective circumstances included Scahill's lack of prior criminal history, his plea of guilty, his contrition and remorse, and his limited financial capacity to pay a fine.

After considering the various factors, the court decided that it was expedient to inflict punishment, other than nominal punishment, on Scahill. The court imposed a fine of $11,000, taking into account the objective circumstances of the offence and the subjective circumstances of Scahill. The court also ordered Scahill to pay the prosecutor's costs of the proceedings, as agreed or assessed.

In conclusion, the court found Scahill guilty of cutting down trees without the necessary development consent, and imposed a fine of $11,000. The court also ordered Scahill to pay the prosecutor's costs of the proceedings, as agreed or assessed.

Orders